Don't Copy & Paste Your Fire and Fury
I can't help but devote this Tip of the Night to a posting on another blog - that of the peerless expert in electronic discovery, Craig Ball. Ball's post on January 5 has been the talk of the electronic discovery world this week. He very amusingly takes down the Los Angeles firm which is threatening to bring libel charges on behalf of our incompetent, ethically challenged President against the author and publisher of Fire and Fury, the expose of the deeply dysfunctional White House. A cease and desist letter sent by Harder, Mirell & Abrams LLP is available here.
As Ball points out the language in the letter from Harder in the section beginning on page 5, addressing preservation obligations, and continuing to the end of the letter on page 11 (more than half its total length), is a word for word copy of the sample preservation letter in the Appendix to Ball's guide, The Perfect Perservation Letter, published back in 2006.
While Ball's guide is still pretty good Tip by itself, it was published more than a decade ago, and a careful attorney and their litigation support professional (or really anyone capable of taking the trouble to actually read it - that would clearly not be our President) would see the need to update it. As Ball points out in his post the sample letter includes references to zip disks and Lotus 1-2-3, but doesn't refer to social media at all. It refers to the amendments to the Federal Rules of Civil Procedure in 2006, but doesn't account for the focus in the 2015 amendments on proportionality . Trump's attorneys ignored Ball's admonition in the introduction to the appendix to edit the letter so it focuses on the issues and digital evidence of a particular case. Ball warns, "what follows isn’t the perfect preservation letter for your case, so I don’t recommend adopting it as a form".
God help this country and this world with someone in the White House who's so willing to blow off such common sense warnings, and has underlings who follow suit.